Miller v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-106V Filed: October 27, 2017 UNPUBLISHED

MARCIA MILLER, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On January 23, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleged that she developed Guillain-Barré Syndrome (“GBS”) resulting from the influenza vaccine she received on September 29, 2015. Petition at 1, ¶¶ 4, 17-18. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 28, 2017, respondent filed his Rule 4(c) Report stating that he “does not contest entitlement in this matter.” Respondent’s Rule 4(c) Report at 1. The same day, a ruling on entitlement was issued, finding petitioner entitled to compensation. On October 27, 2017, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $160,000.00 for past and future pain and suffering and $500.00 for past unreimbursed medical expenses for a total award of 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). $160,500.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $160,500.00 in the form of a check payable to petitioner, Marcia Miller. This total amount of damages represents $160,000.00 for past and future pain and suffering and $500.00 for past unreimbursed medical expenses. This amount represents compensation for all damages that would be available under § 15(a).

The clerk of the court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

************************************* MARCIA MILLER, * * Petitioner, * No. 17-106V * CHIEF SPECIAL MASTER v. * NORA BETH DORSEY * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * *************************************

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

The Court issued a Ruling on Entitlement on July 28, 2017. Based upon the evidence of

record, respondent proffers that petitioner should be awarded compensation as follows:

$160,000.00, for past and future pain and suffering, and $500.00 for past unreimbursed medical

expenses. These amounts represent all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees.

II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respondent recommends that the compensation provided to petitioner should be made through a

lump sum payment of $160,500.00, in the form of a check payable to petitioner. Petitioner

agrees.

1 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering. Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ DEBRA A. FILTEAU BEGLEY DEBRA A. FILTEAU BEGLEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181 Dated: October 27, 2017